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  • 243The Martens Clause

    doi: 10.3249/1868-1581-10-1-fleck

    Goettingen Journal of International Law 10 (2020) 1, 243-266

    * Former Director International Agreements & Policy, Federal Ministry of Defence, Germany; Member of the Advisory Board of the Amsterdam Center for International Law (ACIL); Honorary President, International Society for Military Law and the Law of War.

    The author would like to express his gratitude for critical comments he received from Professor Michael Bothe, Goethe University Frankfurt; Professor Uzeyir Mammadov, Kazan State University; Professor Michael A. Newton, Vanderbilt University, Nashville, Tennessee; Professor Mary Ellen O’Connell, University of Notre Dame, Indiana; and the participants in the Journal’s peer review process on an earlier draft of this Article. All opinions are personal.

    This contribution is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Germany License and protected by German Intellectual Property Law (UrhG).

    The Martens Clause and Environmental Protection in Relation to Armed Conflicts

    Dieter Fleck*

    Table of Contents

    A. Introduction .........................................................................................245 B. The Martens Clause and its Revival in International Treaty Law ......... 248 C. Issues of Indeterminacy in the Law of Armed Conflict .........................252 D. Customary Law ....................................................................................253 E. General Principles of Law .....................................................................261 F. Soft Law and Best Practices ..................................................................263 G. Some Practical Consequences of the Martens Clause ........................... 264 H. Conclusions ..........................................................................................265

  • 244 GoJIL 10 (2020) 1, 243-266

    Abstract

    The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.

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    A. Introduction The applicable treaty law1 relating to the protection of the natural

    environment during international armed conflicts is limited to the prohibition of damage of an extreme kind and scale that has not occurred so far2 and may hardly be expected in the conduct of hostilities, unless nuclear weapons would be used.3 But for such case, nuclear-weapon States have explicitly objected to the applicability of that treaty law.4 Specific treaty law on the protection of the environment in non-international armed conflicts is altogether lacking. On the other hand, multilateral environmental agreements concluded in peacetime “[…] stand as an alternative approach […]”5 to enhance environmental protection during all armed conflicts.

    1 Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, 18 May 1977, Art. I (1), 1108 UNTS 151, 152 [ENMOD]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Arts. 35 (3) and 55, 1125 UNTS 3, 21, 28 [AP I]; Rome Statute of the International Criminal Court, 17 July 1998, Art. 8 (2) (b) (iv), 2187 UNTS 3, 94 [ICC Statute].

    2 J.-M. Henckaerts & D. Constantin, ‘Protection of the Natural Environment’, in A. Clapham & P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (2014), 468, 470.

    3 See the discussion by D. Fleck, ‘Legal Protection of the Environment: The Double Challenge of Non-International Armed Conflict and Post-Conflict Peacebuilding’, in C. Stahn et al. (eds), Environmental Protection and Transitions From Conflict to Peace (2017), 203, 203-204; by M. Gillett, ‘Eco-Struggles. Using International Criminal Law to Protect the Environment During and After Non-International Armed Conflict’, in C. Stahn et al. (eds), Environmental Protection and Transitions from Conflict to Peace (2017), 220, 228- 231; and by M. Lawry-White, ‘Victims of Environmental Harm During Conflict. The Potential for “Justice”’, in C. Stahn et al. (eds), Environmental Protection and Transitions from Conflict to Peace (2017), 367, 372-375.

    4 See the UK’s nuclear weapons clause, an interpretive statement that has never been contested by any other State, Great Britain, The Manual of the Law of Armed Conflict, (2004), para. 6.17. See also the letter from Department of State Legal Adviser, John B. Bellinger III, and Department of Defense General Counsel, William J. Haynes II, to the President of the International Committee of the Red Cross (ICRC) Dr. Jakob Kellenberger, J. B. Bellinger III & W. J. Haynes II, ‘A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law’, 89 International Review of the Red Cross (2007) 866, 443.

    5 B. Sjöstedt, Protecting the Environment in Relation to Armed Conflict. The Role of Multilateral Environmental Agreements (2016), 309. This convincing approach is supported by specific treaty obligations for occupying powers, (Convention (IV) Respecting the Laws and Customs of War on Land and its Annexes: Regulations Concerning the Laws and Customs of War on

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    Persons participating in hostilities are subject to more than one branch of international law: international environmental law and human rights law are as relevant for the conduct of wartime military operations as international humanitarian law.6 The interaction among these different branches of international law becomes evident if one realizes, as the International Court of Justice (ICJ) has done in Nuclear Weapons, that human rights do not cease to apply in times of war and “[…] States must take environmental considerations into account when assessing what is necessary and proportionate in pursuit of legitimate military objectives”.7 While this underlines that the environment, as a civilian object, may not be targeted or attacked,8 it does not limit the collateral damage of the environment when attacks against military objectives are carried out. Customary rules, general principles of law, and soft law might pave the way

    Land, 18 October 1907, TS 539, 1 Bevans 631, 36 Stat. 2277, Arts. 43 and 55 [The Hague Convention (IV)]).

    6 Henckaerts & Constantin, ‘Protection of the Natural Environment’, supra note 2, 482- 484; D. Murray (ed.), Practitioners’ Guide to Human Rights Law in Armed Conflict, 2nd ed. (2016).

    7 Legality of the Use or Threat of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, 240, paras. 25, 30 [Nuclear Weapons].

    8 See Henckaerts & Constantin, ‘Protection of the Natural Environment’, supra note 2, 474. It is, indeed, to be considered that under Art. 52 (2) AP I, a provision that reaffirms existing customary law, “[…] military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. The natural environment would barely meet this classical definition in any realistic scenario of professional warfighting.

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    for cooperative solutions,9 yet the relevant instruments that have been developed so far remain less than sufficient.10